Problem

����������� Currently, a large wood fired power plant is operating in an economically depressed community outside Flint, Michigan.� This facility incinerates wood waste to generate electricity for sale to the Consumer Power Company.� However, this facility, the Genesee Power Station Limited Partnership, also generates pollution.� This pollution is released through the incinerator�s smokestack into a community that was already polluted before the facility was constructed, indeed before the plan for the facility was contemplated.� The incinerator is located in Dort/Carpenter Industrial Park, which is home to three hazardous waste facilities regulated by the Environmental Protection Agency (EPA), two facilities that emit toxic air pollution, and three facilities that deal with multiple forms of toxic waste, one of which is a petroleum tank farm (http://www.epa.gov).� In addition, the community is predominantly comprised of people of color, and of people with low incomes.�

Any situation where a group of people must endure more than their share of negative environmental consequences constitutes an environmental injustice.� Regarding environmental justice, the EPA holds that, �no group of people, including racial, ethnic, or socioeconomic group should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies� (Lowe 2).��� The people that live around the Genesee Power Station incinerator are subject to a disproportionate amount of pollution, making this situation a clear example of an environmental injustice.� Further, the Michigan Department of Environmental Quality did not address several key issues regarding the community when it approved the incinerator�s air pollution permit in 1992.

Background

The Genesee Power Station Limited Partnership incinerator has been a problem for the surrounding community since 1992.� On December 2, 1992, the Michigan Department of Environmental Quality (MDEQ) approved the permit for the facility.� The permit approved the construction of the $80 million incinerator, which was the first in the state to use demolition wood for fuel.� The plant produces 35 megawatts of electricity for sale to Consumer Power Company, which then sells the energy to residents. The plant produces enough electricity for 35,000 homes in Flint and the surrounding Genesee Township.� Flint is the largest city in Genesee Township and is comprised of 51.1% people of color (United for Action 1994).�

����������� The industrial park that the incinerator occupies is in an economically depressed minority and low-income community.� The park is located on the north side of Carpenter Road in a primarily residential area.� An elementary school is located directly to the West of the industrial park, and there are 14 more schools within a three-mile radius from the incinerator (United for Action 1994).� This means that children on recess outside their school are subject to harmful air emissions.

����������� The incinerator generates electricity by burning wood waste, which then heats a boiler that generates the energy.� Some of the wood waste fuel comes from the demolition of buildings and other structures, and is called demolition wood waste.� This demolition wood is sometimes coated with lead-based paint, and other lead-based substances that were used in the construction of the demolished buildings.� When this demolition wood coated in lead is burned, lead is released into the air and the surrounding community through the incinerator�s single smokestack (United for Action 1994).�

Lead is not the only substance the incinerator releases.� It is regulated by the Environmental Protection Agency to release carbon monoxide, nitrogen dioxide, inorganic compounds, sulfur dioxide, and particulate matter (http://oaspub.epa.gov).� Of all the emissions, lead is the most harmful to the surrounding community.� The Agency for Toxic Substances and Disease Registry says that lead is most harmful to young children, and unborn children.� If a pregnant woman is exposed to lead it can be carried to the unborn child and cause premature birth, low birth weight, or even abortion.� Young children are at risk because they swallow lead when they put toys or other objects soiled with lead containing dirt in their mouths. For infants and young children, lead has been proved to cause decreased intelligence test scores, slowed growth, and hearing problems. Exposure to high levels of lead can cause kidney and brain damage in adults, increased blood pressure, and can damage the male reproductive system (www.astr.cdc.gov).���

The incinerator uses several measures to try to prevent the emission of lead into the atmosphere.� Some wood waste is cleaned before being burned to remove the toxic lead substances.� Also, the facility uses a multiclone and electrostatic precipitator to trap lead emissions before they are released through the smokestack (United for Action 4).� In fact, a 1998 press release from the MDEQ states that, �The permit authorized by DEQ is very protective of the local population.�� And that, �lead emissions from the facility impacting the surrounding neighborhood will be 100 times less than the national standards for lead emissions� (MDEQ 1).

However, the Michigan Department of Environmental Quality did not address some key issues regarding lead emissions before issuing the permit for the incinerator in 1992.� The MDEQ never prepared an environmental impact statement before issuing the permit, nor did they attempt to ascertain the amount of lead already present in the community.� Also, MDEQ did not determine if people in the community were already suffering from exposure to lead, and did not study the potential changes in the amounts of lead exposure that the incinerator could cause in the community (United for Action 6).� The potential impact on the community was never determined, nor was it even studied.

In addition, the requirements set by MDEQ for preventing lead-coated wood waste from burning in the incinerator are lacking.� Genesee Power Station was required to submit a wood waste procurement and monitoring plan to the MDEQ, which would be used to prevent burning of unacceptable materials.� However, the only element of the plan specified by the MDEQ was the requirement that all wood waste be visually inspected before being burned.� This visual inspection requirement is not enough to eliminate lead coated wood from the incinerator�s fuel supply.� In addition, the permit states that Genesee Power station should use �extensive processing procedures� (United for Action 1994) on the wood waste to help decrease the amount of lead burned in the incinerator.�

These procedures were not defined by the MDEQ or by Genesee Power Station prior to the facility�s construction.� The permit issued in 1992 stated that the procedures were to be outlined in the wood waste procurement and monitoring plan, which would be submitted sometime before the facility began operation (United for Action 8).� This made the possibility of implementing more stringent regulations on the facility very unlikely due to the difficulty of changing technology that would have already been in place.� This placed the community surrounding the facility in a very limited position.� The community�s needs were not recognized by the MDEQ when they approved the construction of the incinerator, forcing the community to take action.

St. Francis Prayer Center and United for Action:� These are two community groups that mobilized to combat the problems presented by the Genesee Power Station incinerator.� These groups are concerned with the well being of their community, and the quality of their lives.� They see the Genesee Power Station incinerator as a threat to their community�s health, and wish to end its operation.� They also believe that the permitting process that the MDEQ used for Genesee Power Station did not allow for enough community involvement.�

Michigan Department of Environmental Quality:� It is the MDEQ�s job to issue permits for the construction of facilities that emit pollution.� The MDEQ�s mission is to �drive improvements in environmental quality for the protection of public health and natural resources to benefit current and future generations� (http://www.deq.state.mi.us).� However, the MDEQ must do this �while helping to foster a strong and sustainable economy� (http://www.deq.state.mi.us). Therefore, the MDEQ is interested in both economic development, and the quality of the environment.� These two interests frequently come in conflict with one another.

The Guild Law Center:� The Guild Law Center (GLC) is a national, non-profit public interest law center.� Their work is focused around pursuing economic justice and protecting the rights of the economically disenfranchised.� The GLC supplied legal assistance to the community surrounding the Genesee Power Station incinerator.�� Attorneys from the GLC handled litigation concerning the incinerator, and were a valuable resource for the community (http://www.glc.org).�

����������� A demographic analysis of two US Census tracts (data from the 1990 census) that make up the community around the incinerator yields some interesting results.� The data from the census tracts show that the community is composed of 75.3% minorities and people of color.� A breakdown of all the residents of the community is shown in the table below.

Race

Percent of Total Population

White

24.7

Black

72.9

American Indian, Eskimo or Aleut

0.29

Asian or Pacific Islander

0.58

Other Race

0.15

(US Government Census, tracts 0017 and 0018)

Also, the 1990 census data show that 47.2% of the total population of the community is below the poverty line (http://tier2.census.gov).� These data show that the community is clearly economically disenfranchised, and predominantly composed of minorities and people of color.���

Comparing these data with demographics from Genesee County as a whole also yields interesting results.� 77.3% of the people living in Genesee County are white, and only 21.1% are black.� Other minorities make up less than 2% of the population (http://www.tier2.census.gov).� This comparison shows that the demographics of the community surrounding the incinerator are not representative of Genesee County.� Therefore, the people living in this community constitute a distinct racial group and bear a disproportionate amount of the negative impacts associated with the incinerator when compared to the benefits (electricity) Genesee County receives as a whole.� This fits within the definition of an environmental injustice.�

After the permit for the Genesee Power Station incinerator was issued in 1992, nine petitions were filed to the EPA Appeals Board in opposition to the incinerator.� These appeals were submitted by community residents, United for Action, the American Lung Association of Michigan, and the Genesee County Medical Office (United for Action 5).� These petitions were intended to draw attention to the plan for building the incinerator, and bring about changes in the permit supplied by the MDEQ.� The EPA Appeals board decided to change the language of the permit, but made no real improvements.� The permit did not hold Genesee Power Station responsible for any negative impacts the incinerator might have on the community, nor did it �contain any clear, enforceable limitations on the burning of low quality construction and demolition wood waste at the facility (United for Action 8).�� Clearly, the Appeals Board failed to solve the problem for the community around the incinerator.

����������� No other legal action was taken against the incinerator until 1995.� In the mean time, the St. Francis Prayer Center and United for Action attempted to gain legal council, and use the media to draw attention to their problems.� The community made numerous attempts to gain council to open a lawsuit against the MDEQ for approving the permit that resulted in polluting their homes.� Construction began on the facility, and was near completion in July 1995 when the NAACP and the Guild Law Center filed a lawsuit in an attempt to shut down the facility and relieve the community (Peters 1999).

����������� The original lawsuit was titled NAACP vs. Engler.� The suit claimed that the state of Michigan�s approval of the permit for Genesee Power Station violated Title VI of the federal Civil Rights Act, the Michigan Elliott-Larson Act (the state equivalent of Title VI), the Michigan Environmental Protection Act, and the equal protection clause of the Michigan constitution (Peters 1999).� The original defendants were Genesee Township, the State of Michigan and its governor, John Engler.� Genesee Power Station was not sued.�

Title VI of the federal Civil Rights Act gives the federal government leverage over state governments that receive federal funding.� If a state�s actions are found to be discriminatory, the federal government must withdraw its financing (Lowe 1998).� In this case, the community hoped to prove that the State of Michigan�s approval of the incinerator�s permit was an act of discrimination because it intentionally placed the incinerator in a poor, minority community.� If the community�s lawyers proved a discriminatory act occurred, then the State of Michigan would have to shut down the incinerator because of the threat of the federal government withdrawing funds.� It was also necessary for the plaintiffs to prove an act of discrimination occurred to prove their claims on the state acts.�

����������� In August 1995, the case went to trial at Federal court.� The court remanded all the state law claims to the Genesee Circuit Court, and retained the federal Title VI claim (Peters1999).� In September 1995, the court dismissed the Title VI claim with prejudice.� The plaintiffs were not able to prove that the State of Michigan committed an act of discrimination, and because the claim was dismissed with prejudice, are unable to bring that claim to court again.� However, the state claims still remained and soon went to trial (Peters 1999).�

����������� In March 1996, Genesee Power Station (GPS) was added to the list of defendants, and the case was sent to Genesee Circuit Court.� The court came to a settlement on the Equal Protection claim, and both parties agreed to a dismissal of the claim under the Michigan Environmental Protection Act.� The settlement stipulated that the incinerator would only burn 20% construction and demolition wood as fuel.� The settlement also allowed GPS to request an increase in this percentage if it could show that its lead emissions would not exceed 20% of the permitted level (Peters 2).� This settlement did not satisfy the plaintiffs.� The discriminatory site of the incinerator was not addressed.� Also, the court did not increase the firmness of the regulations on the procedures used to prevent the burning of lead-coated demolition wood in the incinerator.� A second state trial followed (Lowe 1998).�

����������� The only remaining strategy was the plaintiff�s claim that the MDEQ�s policy for determining sites for incinerators had a disparate impact on minority communities in violation of the Elliott-Larsen Civil Rights Act.� Sadly, the court found that the plaintiffs failed to prove their claim, and the claim was denied.� However, some good did come from this trial.� The court held that the policies and regulations enforced by the State of Michigan did not go far enough to protect the health, safety, and welfare of its citizens.� On May 29, 1997, the court enjoined the MDEQ from granting permits to major air polluters until the MDEQ performed a risk assessment, notified the interested parties and governmental units that would be affected, and gave them an opportunity to be heard before the Department.� These changes in the MDEQ�s policies would be evaluated at another trial that was to be held one year later.� Until this trial, the MDEQ was barred from giving permits to air polluters in Genesee County (Lowe 1998).� This was in direct response to the MDEQ�s actions regarding Genesee Power Station�s permit.�

����������� However, this victory was quite short-lived.� In 1998 the State of Michigan appealed the decision of the trial court to the Michigan Court of Appeals.� The Court of Appeals vacated the injunction, thus successfully overturning the ruling of the trial court.� In regard to the claim under the Elliott-Larson Civil Rights Act, the Court of Appeals said that, �allegation that the MDEQ failed to consider race in issuing the permit is simply not a denial of the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of a place of public accommodation of public service (Lowe 6).�� In other words, the court decided that the MDEQ did not commit an act of discrimination when issuing the permit to GPS.��

The community has attempted to solve their problem through almost every legal avenue possible.� The claim under Title VI can never be made in court again, and the community�s legal council has made all the possible discrimination claims under state law already.� The community has also explored all its options with the EPA and the MDEQ.� The incinerator continues to operate, although it was shut down for a year due to permit violations (Lowry 2000).� This problem is far from being solved.

According to Alma Lowry (11/30/2000), the environmental justice representative at the Guild Law Center, the community needs to continue to use the media to gain publicity for their cause (Lowry).� The worst thing that community groups can do is give up.� Groups like the St. Francis Prayer Center and United for Action need to keep putting pressure on the EPA and other governmental organization even though their efforts have failed thus far.� Some possible activities could be a letter writing campaign, or staging non-violent public protests.

����������� There is one more legal option that the community may be able to explore in the future, which is a private citizen suit claiming a violation of Title VI.� This approach has never been attempted before, and the EPA is still deciding if it is acceptable (Lowry 2000).� Should the EPA decide that it is, the community should defiantly use this legal avenue to continue their fight against the incinerator.�